Opinion
08 Civ. 6546 (SHS)(KNF).
October 5, 2009
REPORT and RECOMMENDATION
I. INTRODUCTION
Before the Court is Terrence Nesmith's ("Nesmith") pro se petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Nesmith contends his confinement by New York State is unlawful because: (1) the trial court erred in instructing the jury on first-degree manslaughter, as a lesser included offense of second-degree murder, since "a reasonable view of the evidence [demonstrated] that there was an intent to cause injury and not an intent to kill, in that petitioner shot the decedent at close range and stated that he intended to kill him"; (2) the trial court permitted, improperly, the prosecution to introduce three separate dying declarations made by the decedent to police officials; and (3) the prosecution withheld exculpatory evidence, in violation of Brady, when the defense (a) first discovered, at trial, that a police informant observed the shooting, (b) did not receive the informant's name or the nature of his cooperation, due to a protective order that kept such information from the defendant, until voir dire began, and (c) was not provided, timely, the identities of "other witnesses" to the shooting.
In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the Supreme Court held that it is a violation of due process for the prosecution to withhold evidence favorable to the accused, when such evidence is material to guilt or punishment.
The respondent opposes the petitioner's application, which is analyzed below.
II. BACKGROUND
At approximately 8:00 p.m., on June 4, 2002, Dinyero Scott ("Scott") was shot three times in a park in Upper Manhattan, resulting in his death. Scott told three police officials that "T" had shot him, and clarified to one police official that "T" was "Terrence from Soundview." Nesmith was arrested, on March 19, 2002, in Bronx County. Following the petitioner's arrest, he was indicted, and proceeded to trial by jury, on May 20, 2004.
Trial testimony established that, prior to June 2002, Nesmith ran a small drug operation, in which Scott sold drugs and provided the profits from the sales to Nesmith. In June 2002, Nesmith learned that Scott intended to keep the profits from his drug sales, and use them to fund the start of his own drug business. In response, Nesmith planned to confront Scott, and traveled from his home, in Pennsylvania, to New York, where he believed Scott was located. Nesmith's roommate, Cassandra Stambaugh ("Stambaugh"), drove Nesmith to New York and, while they were traveling, Nesmith asked where Stambaugh thought Nesmith should shoot Scott. Stambaugh suggested that Nesmith shoot Scott's hand, since Scott had stolen from Nesmith. Nesmith responded that shooting Scott's hand "wasn't good enough," and he thought "he should do more." Stambaugh observed Nesmith making telephone calls, as the two traveled from Pennsylvania to New York. Stambaugh recalled Nesmith discussing how "he needs a gun, he needs, you know, everything set up[,] [y]ou know, he's going to kill him."
Upon their arrival in New York, Stambaugh bought food, went to an acquaintance's home and watched a movie. Nesmith assembled a group of people he knew, and traveled to a park where they encountered Scott. Nesmith's group formed a semi-circle around Scott and Nesmith shot Scott.
At the time of the shooting, Detective Junior Edwards ("Edwards") was assisting a narcotics team, in the vicinity of the park, when he heard gunshots and a man shouting for help. Edwards rushed to the park, saw Scott lying on the ground and asked who shot him. Scott replied, "T from Soundview." Scott was transported to Harlem Hospital, where Police Officer Edgar Schoffner ("Schoffner") interviewed him. Schoffner asked Scott who had shot him, and Scott requested that Schoffner telephone Scott's girlfriend and tell her that "T did this to me." Detective Kasim Williams ("Williams") also interviewed Scott at Harlem Hospital. Scott asked Williams whether he was "gonna make it," Williams replied "it doesn't look good," and Scott informed Williams that "T" shot him. Williams urged Scott to elaborate on who "T" was, and Scott stated, "Terrence from Soundview." Scott then lost consciousness, was rushed to an operating room, and, thereafter, died.
After Scott's death, an autopsy was performed, which revealed three gunshot wounds to the body. The first bullet entered Scott's "back, on the right side, and left his body on the front, on the right side," and proved to be fatal. A second bullet entered "the back of his left thigh," and "[it] just went through some soft tissue and muscle, but did not do any vital damage." The final gunshot wound "was a graze wound, pretty close to where the second wound was, on the back of the left thigh."
Nesmith did not present any evidence to the jury in defense of the charges lodged against him. After closing arguments were made, the jury was instructed, inter alia, "[t]he first count of the indictment . . . charged [Nesmith] with murder in the second degree in that it alleges on June 4, 2002, . . . with intent to cause the death of another he caused the death of Dineryo Scott." The court explained, if the prosecution proved beyond a reasonable doubt that Nesmith had caused Scott's death, with the intent to cause his death, a guilty verdict must be returned for second-degree murder; however, the jurors must otherwise find Nesmith not guilty of second-degree murder. The court instructed the jury that, if they found Nesmith guilty of second-degree murder, they need not consider the charge of manslaughter. However, the court explained further that, if the jurors found Nesmith not guilty for second-degree murder, they were to consider "the lesser included crime [of] manslaughter, first degree." The court instructed the jurors that "[a] person is guilty of manslaughter in the first degree when w[ith] intent to cause serious physical injury he causes [the] death of that person," and that "the difference here is instead of intending to cause death, he intends to cause serious physical injury but his actions do cause the death of another."
On June 8, 2004, the jury found Nesmith guilty for one count of first-degree manslaughter, and second-degree criminal possession of a weapon. On August 5, 2004, Nesmith was sentenced to twenty-five years imprisonment, on the manslaughter charge, to run concurrently with fifteen years imprisonment, on the criminal possession of a weapon charge.
On direct appeal, Nesmith, through counsel, raised the following claims: (1) the trial court erred in charging the lesser included offense of first-degree manslaughter, when a reasonable view of the evidence did not support such a charge; and (2) Nesmith's sentence was excessive. Nesmith filed a supplemental brief, pro se, which raised the following additional claims: (a) the admission of the victim's dying declarations violated his rights under the Sixth Amendment of the United States Constitution; and (b) the following Brady materials were not disclosed to the defense: (i) "memo book entries (police notes)," (ii) "Pennsylvania court transcripts were never made [part of the] record in the New York proceeding," and (iii) unidentified "exculpatory evidence [was withheld] from Grand and Petit Juries."
On January 11, 2007, the New York State Supreme Court, Appellate Division, First Department, affirmed the petitioner's conviction. See People v. Nesmith, 36 A.D.3d 463, 831 N.Y.S.2d 109 (App. Div. 1st Dep't 2007). The Appellate Division found that: (1) the trial court instructed the jury properly on the lesser included offense of first-degree manslaughter, since "there was a reasonable view of the evidence that defendant intended to cause serious physical injury as opposed to death," and noted Nesmith's "conversation with a People's witness shortly before the incident could be reasonably interpreted as expressing an intent to cause serious injury but not death"; (2) Nesmith's "pro se Confrontation Clause argument is unpreserved," and the court declined to review it, finding that, even if it did review the claim, it would be rejected; and (3) no basis for reducing Nesmith's sentence existed. The Appellate Division also determined to reject Nesmith's "remaining pro se claims." Id. at 463-64, 831 N.Y.S.2d 109. The petitioner applied for leave to appeal to the New York Court of Appeals, from the determination of the Appellate Division. On April 5, 2007, that application was denied. See People v. Nesmith, 8 N.Y.3d 948, 836 N.Y.S.2d 559 (2007). The instant application for a writ of habeas corpus followed.
III. DISCUSSION
A. Lesser Included Instruction
"Federal courts may not grant a writ of habeas corpus under § 2254 unless the prisoner 'is in custody in violation of the Constitution or laws or treaties of the United States.'" Cousin v. Bennett, 511 F.3d 334, 339 (2d Cir. 2008) (citing 28 U.S.C. § 2254(a)). "[T]he United States Supreme Court [has] found that in capital cases, due process requires a trial court to instruct a jury on lesser-included offenses, if the evidence warrants such a charge." Bien v. Smith, 546 F. Supp. 2d 26, 43 (E.D.N.Y. 2008);see also Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 2389-90 (1980). However, in non-capital cases, the issue of whether a trial court's refusal to instruct the jury on first-degree manslaughter as a lesser-included offense of murder has been deemed an issue that "cannot form the basis for habeas relief." Bien, 546 F. Supp. 2d at 42-43. The Supreme Court has not ruled upon whether it is a violation of the Constitution or federal law for a trial court to instruct the jury on a lesser-included offense, in a non-capital case, if such an instruction is improper.Although it appears that the trial court's instruction on the lesser-included offense, even if improper, would not violate due process, even if the Court considered the merits of Nesmith's claim, it must fail. "Juries must be instructed as to lesser-included offenses either when one simply cannot commit the greater crime without committing the lesser or when the evidence is such as to permit a finding that the lesser, but not the greater, offense had been committed." United States v. Alfisi, 308 F.3d 144, 153 (2d Cir. 2002). Under New York law, "the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater." New York Criminal Procedure Law ("CPL") § 300.50(1).
In the present case, the jury heard testimony that the petitioner inquired of Stambaugh where Nesmith should shoot Scott, and, the jury learned that two of the three shots by Nesmith were directed at Scott's legs. A reasonable view of this evidence could suggest that the petitioner sought to injure Scott, but not cause his death. In addition, the trial court instructed the jury to consider first-degree manslaughter only if the prosecution did not prove, beyond a reasonable doubt, that Nesmith shot Scott with the intent to cause his death. A jury is presumed to follow the instructions of the trial judge, see Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 733 (2000), and, "[i]n determining the sufficiency of evidence to support a conviction, a reviewing court must . . . uphold the conviction if, from the inference reasonably drawn, the jury might fairly have concluded that the defendant was guilty beyond a reasonable doubt." United States v. Gallo, 863 F.2d 185, 189 (2d Cir. 1988) (quoting United States v. Walker, 835 F.2d 983, 987 [2d Cir. 1987]) (internal quotations omitted). "[A] reasonable view of the evidence" supports the jury's finding that Nesmith intended to injure, rather than kill, Scott. CPL § 330.50(1). Therefore, the trial court's instruction to the jury, on first-degree manslaughter as a lesser-included offense of murder, was not improper, and it is reasonable and appropriate to deny the petitioner's request for relief on this issue.
B. Admissibility of Dying Declarations
Generally, federal courts will not consider "a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991). The Appellate Division rejected the instant claim as it was unpreserved, apparently because no timely objection was made, in the trial court, to the admission of the dying declarations. New York's contemporaneous objection rule, codified at CPL § 470.05, has been found to be a procedural bar to federal habeas corpus review of a federal claim, because it is an independent and adequate state-law ground that is "firmly established" and "regularly followed" by New York courts.Richardson v. Greene, 497 F.3d 212, 219 (2d Cir. 2007); see also Garvey v. Duncan, 485 F.3d 709, 714 (2d Cir. 2007) ("A general objection is not sufficient to preserve an issue. . . . Instead New York's highest courts uniformly instruct that to preserve a particular issue for appeal, defendant must specifically focus on the alleged error."). To overcome this procedural bar, the petitioner must show cause for the default and prejudice flowing therefrom, or that failure to review a claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 749-50, 111 S. Ct. at 2564-65 (internal quotations and citations omitted). In his habeas corpus petition, Nesmith has not attempted to show cause and prejudice for his default, nor has he alleged that a fundamental miscarriage of justice would result, if his claim were not considered. Therefore, the petitioner's claim, that the trial court violated his right to confront witnesses, is procedurally barred, and the petitioner has failed to overcome this bar. See, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) ("habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim").
In any event, the Supreme Court has not ruled that the dying declaration exception to the hearsay rule violates the Confrontation Clause; therefore, it cannot be said that Nesmith is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see, e.g., Crawford v. Washington, 541 U.S. 36, 56 n. 6, 124 S. Ct. 1354, 1367 n. 6 (2004) (declining to rule on whether the admission of dying declarations violated the Sixth Amendment). As a result, it is reasonable and appropriate to deny the petitioner's request for relief, on his claim that the admission of Scott's dying declarations violated his right to confront witnesses.
C. Brady Violation
"[A] petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). Although the petitioner raised a Brady claim in his pro se brief on direct appeal, he did not present theBrady claims he now presents in his federal habeas corpus petition. According to Nesmith's habeas corpus petition, he knew of the prosecution's alleged failure to disclose exculpatory materials at the time of trial. Since Nesmith has "used the one direct appeal to which he is entitled," and it would be futile for Nesmith to now raise his Brady claims in state court, in a motion to vacate under CPL § 440.10, since such a motion would be denied pursuant to CPL § 440.10(2)(c) — because these claims could have been raised on direct appeal — these claims are "deemed exhausted." Home v. Perlman, 433 F. Supp. 2d 292, 295 (W.D.N.Y. 2006). However, the merits of Nesmith's Brady claims cannot be reviewed in a federal habeas corpus proceeding, unless Nesmith demonstrates cause for his default and prejudice flowing therefrom, or that a fundamental miscarriage of justice will result if his federal habeas claims are not reviewed. See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989). Since the petitioner has shown neither cause and prejudice, nor that a fundamental miscarriage of justice will result, his Brady claims are procedurally barred from federal habeas corpus review.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Nesmith's petition for a writ of habeas corpus, Docket Entry No. 1, be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).